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The Community system is not based on separation of powers but on representation of interests. Each European institution is the bearer of a particular, national or supranational interest, which it strives to protect and promote. This makes the European Community a latter-day version of mixed government. The principle of institutional balance, typical of mixed government, entails the preservation of the relative position of each interest, and of the institution which represents it. This key principle, combined with the Commission’s monopoly of agenda setting, has become a serious obstacle to institutional innovation and policy learning in the EU.

This chapter comments on the institutional balance formulated by Lenaerts and Verhoeven in the preceding chapter. Section I describes the ‘traditional’ interpretation of institutional balance to better distinguish the particular features of the definition provided by Lenaerts and Verhoeven, which could be called an ‘institutional balance of interest representation’. Section II discusses this ‘new reading’ of the institutional balance, which offers a potential normative tool to structure European governance. Section III argues that its potential can only be realized to the full if well-known territorial representation is complemented by narratives on functional representation.

This chapter looks into the legal limits to the establishment and empowerment of EU agencies, firstly from the perspective of the principles of conferred powers, subsidiarity, and proportionality. While the EU lacks the explicit competence to establish agencies, an implied competence to do so is found. Regarding subsidiarity and proportionality, a tension between the two principles and within proportionality is noted, whereby subsidiarity pushes the legislator towards significant empowerments of EU agencies, while proportionality requires the legislator to grant modest powers. However, granting only modest powers would also result in the disproportionality of establishing a new agency in the first place. The chapter then looks into the relevance of Meroni, Romano, and the institutional balance, clearly distinguishing these three ‘obstacles’ to further agencification. The analysis is juxtaposed with the Court’s ruling in Short-selling (C-270/12), showing how the Court has not paid sufficient attention to the institutional balance and the issue of control.

The chapter examines the new institutional dynamics of the European Union after the Lisbon Treaty, with a particular focus on the relationship between the European Commission and the Council of Ministers. It discusses the changes introduced by the Lisbon Treaty — the creation of the position of the President of the European Council, the joint appointment of the High Representative for Foreign Policy as Vice-President of the European Commission and Chair of the Foreign Affairs Council, the setting up of the European External Action Service and the resultant implications for the rotating Presidency — and analyses the way in which these innovations affect the balance between the institutions. This analysis includes the political level (the relations between the Commission President, the European Council President and the Presidency) as well as the administrative level (the impact on the services of the Commission, on the Council Secretariat and on the involvement of national administrations). By way of conclusion, the chapter will reflect on the consequences that the new institutional provisions will have on the coherence, effectiveness and legitimacy of EU governance.

Emphasizing public legislative history and rhetoric, it can be argued that Congress has suffered from an existential crisis revealed in cycles of ambivalence, where members first delegate power, then appear to regret the decision and attempt to nibble back power in various ways, and then finally, months or years later, opt to delegate even more. However, there are moments of institutional cohesion that show Congress can indeed summon or at least defend its own institutional expertise, resources, and power to rival the president's. In contrast to Georeg W. Bush's legislative style of centralization and disrespect for Congress as an institution, President Barack Obama's staff and cabinet connections to Congress at all levels so far have shown an executive strategy of deference. Nevertheless, there remains the larger question whether Congress will ever forge a high-enough profile to counter any president's omnipresence in American politics or instead be relegated permanently to secondary status regardless of the imperfections of executive-driven policy of any era.

A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This chapter examines the role of constitutional law in limiting this delegation capacity. The experiences of the three jurisdictions are examined according to three factors: first, the constitutional source of restraint; second, control technique; and third, judicial attitudes to the appropriateness of intervening in governance choices that may be perceived to be taken more appropriately by the legislature or executive. Close scrutiny is given to the US federal non-delegation doctrine; equivalent robust state non-delegation doctrines, and in particular, the non-delegation doctrine developed by the Texas Supreme Court in the Boll Weevil case; the limitations of the UK's unwritten constitution in this context; and the ECJ's seminal case on delegation, Meroni v High Authority.

This chapter also focuses on the search for a ‘new institutional balance’, but addresses a series of tensions that need to be balanced. The potential of law to resolve social problems may be jeopardized by the respect for the rule of law. The judiciary is nevertheless expected to promote ‘good governance’ while simultaneously protecting individual rights and supervising public authorities. It is argued that the legitimacy problems of European market governance differ significantly between the areas of economic and social regulation. The core problem of economic regulation is the discretionary power granted to the European Commission. The challenges in the field of social regulation require a more fundamental re-orientation: the search for legitimacy no longer involves the democratic nature of government. It now involves local and operational forms of administrative coordination.

Chapter 5 examines the Courts' approach to participation in rulemaking procedures analysing in depth the Courts' leading ruling on this matter (Atlanta). It argues that the different positions of the Court on the right to be heard in individual procedures, on the one hand, and rulemaking procedures, on the other, are grounded in the same premise: the preconception regarding the structure of the procedure characterised in Chapter 4. The reasons why the Courts excluded general acts from the realm of participation rights — representative democracy, institutional balance, and inaccurate classification of legal acts — are scrutinised and criticised. Furthermore, this chapter argues that the concept of participation rights adopted in the book may contribute to surmount the shortcomings of the Courts' approach. Finally, it analyses the possible impact of the modifications proposed on the scope of other procedural guarantees: access to information, the duty to state reasons, the duty of careful and impartial examination and language rights.

The discussion thus far has considered the different ways in which the EU delivers policy. The focus has been on administration and law. In the second part of the book the focus shifts to law and administration, and an evaluation of the judicial doctrine that is of principal significance for EU administration and for the Member States where the latter act within the scope of EU law. It is important to pause and reflect on themes that cut across and are equally pertinent to the analysis of particular aspects of review. This chapter will, therefore, lay the groundwork for the ensuing discussion.

The chapter focuses on the implications of Brexit on the EU inter-institutional balance, and inter-state relations, and argues that not much change is to be expected here. According to Puetter, the UK already dramatically reduced its engagement inside the EU institutions. It isolated itself within the European Council and it was the only Member State together with Hungary to vote against the appointment of Jean-Claude Juncker as Commission President in 2014. The UK lost influence in the European Parliament as a result of David Cameron’s decision to take the Conservative party out of the European Peoples’ Party. Brexit may make room for greater roles for countries like Italy and Spain, yet, the German–French axis will probably remain dominant. Puetter suggests that the inter-institutional equilibrium within the EU will not change. Brexit is unlikely to shift the balance from the European Council back towards the European Commission.

The new institutional balance resulting from the Treaty of Lisbon is being tested nowhere as sharply as in the field of the exercise of the EU’s powers of external action. There is a wealth of recent litigation clarifying aspects of the procedural code, now set out in Article 218 TFEU, which governs the negotiation, conclusion, and implementation of international agreements concluded on behalf of the EU. This chapter explores issues connected with the adoption of acts within the framework of Article 218, including the designation of the Union negotiator, the choice of legal basis for decisions on the conclusion of agreements and the enhanced role of the European Parliament in such decisions. Also discussed are certain controversial developments in the procedure that applies for determining the Union’s position in a decision-making body established under an international agreement, and other issues including the legality of so-called ‘hybrid acts’.

The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.

This chapter deals with questions of the jurisdiction of the International Court of Justice in the Kosovo advisory proceedings and its discretion to decline to exercise advisory jurisdiction. These were major points of contention during the Court’s deliberations. It analyses the findings of the Court on jurisdiction and discretion in the Kosovo Advisory Opinion (AO), and examines if and how the judges responded to arguments raised by participants in the proceedings; in particular, those who were in the minority on the question of discretion. It also discusses the repercussions of the Court’s decision to render an advisory opinion, despite various objections about the propriety of doing so, including on the grounds that this would upset the institutional balance within the United Nations. The chapter finally attempts to assess the impact of the Kosovo AO on the Court’s future practice in advisory cases.

The chapter begins by considering the core assumptions underlying the Lisbon model and the rationale for the division between delegated and implementing acts. The subsequent analysis then addresses the tensions and strains in the application of this divide. The ‘analytical and temporal’ tension that lies at the heart of the distinction between delegated and implementing acts is discussed. The focus then shifts to the ‘constitutional’ dimension, signifying in this respect the ways in which key constitutional assumptions have been undermined by political change and the impact that this has had on the relative power of the relevant institutions. This is followed by the ‘institutional’ tension. The penultimate tension is ‘legal form’ and the way in which it can affect application of the normative assumptions. The discussion concludes with the ‘conceptual’ dimension, which signifies the ways in which administrative choice can affect the dichotomy between the two kinds of act.

The puzzle of my chapter is to explain an astonishing transformation of the European Union over the last 60 years. Faced with dramatic challenges in their international, economic, social, and political environment, the member states, as masters of the treaty, have taken considerable steps to widen, deepen, and broaden their common system. In an unconventional explanation, the chapter argues that the European Council, as the regular summit forum of national and European leaders, generally characterized as the apex of the intergovernmental nature of the EU’s architecture, has been the dynamic driver of this remarkable process. In analysing the specific functions of the European Council as the constitutional architect, I identify a typical four-step pattern in its power of transformation. The result is a fusion of intergovernmental and also strong supranational features which explains a considerable resilience to deep and varied crises.